.04-3 Antidegradation Policy Implementation Procedures: Tier III Level of Protection — Outstanding National Resource Waters.

A. Scope. There are many tools available to protect special resources including the Smart Growth Initiative, Rural Legacy Program, local comprehensive plans, Program Open Space, and others that work through the private sector and nongovernment organizations. This regulation applies the Tier III Outstanding National Resource Waters (ONRW) designation only where the most stringent protection is necessary and appropriate to protect and maintain existing exceptional resources. Where high quality waters constitute an outstanding national resource, such as waters of national and State parks and wildlife refuges, and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

B. Definitions.

(1) Exceptional Biological Resources.

(a) "Exceptional biological resources" means ecologically significant aquatic or wetland habitat that is:

(i) Distinctive because of its unique or very rare combination of natural species and communities; and

(ii) Dependent on maintaining high or pristine water quality or special conditions of existing water quality, such as a bog, which can best be assured protection by no new or increased discharge.

(b) "Exceptional biological resources" includes, if appropriate:

(i) Wholly aquatic threatened or endangered species as defined in Natural Resources Article, §10-2A-01, Annotated Code of Maryland;

(ii) Wholly aquatic species in need of conservation identified in COMAR; or

(iii) Wetlands of special concern as defined in COMAR 26.23.06.

(2) "Protected Area" means a permanently protected area such as:

(a) Wildlife refuges or similar habitat protection areas which include but are not limited to wildlife management areas, national parks, State parks, and management areas;

(b) Areas under permanent conservation easement or rural legacy status as determined in consultation with the Rural Legacy Board, Natural Resources Article, §5-9A-03, Annotated Code of Maryland, or easement holder to assure that the location meets the intent and needs of the ONRW designation as determined by the Department of the Environment; or

(c) Areas under some other demonstrated protection, by which the Department may be assured that there will be no changes in land use which could result in nonpoint source runoff posing a direct or indirect threat to the biological values proposed in the nomination.

C. Eligible Nominations.

(1) Required Components. The nominating group or individual shall provide:

(a) Evidence of the presence of exceptional biological resources or exceptional recreational resources dependent on such biological resources;

(b) Scientific information and analysis concerning existing water quality in the body of water, including a demonstration that the water quality is typical of the nominated body of water;

(c) Specific boundaries of the nominated waters and upstream watershed, and a statement whether the nominated body of water and upstream watershed are fully within a protected area except as provided in §F of this regulation; and

(d) Demonstration that an attempt has been made to notify all impacted riparian landowners of the nomination by delivering or mailing notice of proposed nomination to the riparian landowner.

(2) A mailed notice shall request "Restricted Delivery" and show to whom it was delivered and the date and address of delivery.

(3) Additional Information That May Be Required. The Department may require the nominee to submit an economic analysis to address community economic and social concerns.

(4) Assessment. Before proposing the ONRW designation for a body of water, the Department will analyze the information in the nomination package for completeness and confirmation that the body of water achieves and meets the conditions of the ONRW designation.

D. Requirements for an ONRW.

(1) The area nominated for ONRW designation shall be an exceptional biological resource or exceptional recreational resource dependent on exceptional biological resources.

(2) The exceptional biological resource shall be dependent on maintaining high or pristine water quality or special conditions of existing water quality, such as a bog, which can best be assured protection by no new or increased discharge.

(3) To be designated an Outstanding National Resource Water, the area shall be wholly within a permanently protected area.

(4) If the area nominated for ONRW designation has high water quality but does not have exceptional biological resources, it will be protected against degradation under Regulation .04 of this chapter.

E. Protection for Upstream Areas that Feed the ONRW Water Body. In determining whether to designate a body of water as ONRW, the Department may consider whether the watershed upstream of the proposed ONRW area has protections in place that are consistent with the maintenance and protection of biological resources in the ONRW segment. These protections can include, but are not limited to:

(1) A county comprehensive plan or other plan that designates the upstream watershed as a "no growth area"; or

(2) An easement or other legal instrument that protects and maintains the existing land use.

F. Endangered Species. If a nomination is based on a federally threatened or endangered wholly aquatic species, the Department may, but is not required to, designate a water body as an ONRW without requiring protected status. Although the presence of an endangered species may be an indication of a special biological resource, the primary protection for endangered species is provided by the Maryland Nongame and Endangered Species Conservation Act, Natural Resources Article, Title 10, Subtitle 2A, Annotated Code of Maryland, and the Federal Endangered Species Act. If an ONRW is approved for a body of water that is not in a protected status, any regulated activities in the watershed which would adversely impact the aquatic threatened or endangered species population, or impair the habitat required by the species, will require the maximum practical application of best management practices and implementation of antidegradation policies by the Department. The implementation requirements set forth in §I of this regulation also apply.

G. Designation of an Area as an ONRW.

(1) The Department may designate an area as an ONRW if:

(a) All provisions of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 1, Annotated Code of Maryland, have been met;

(b) The application is complete and all requirements have been met; and

(c) Written permission for the designation has been received from the landowner or landowners within the proposed area for ONRW.

(2) Notice to property owners shall be based on property and tax records in the affected jurisdictions.

H. Public Involvement. The Department shall provide public notice and opportunity for a public informational hearing on the proposed designation of an ONRW before that designation is made. Local jurisdictions shall have 60 days after notification of the nomination to comment on the consistency of the nomination with the locality's comprehensive plan.

I. Implementation.

(1) A wastewater or industrial discharge NPDES permit that would allow a new discharge or an increase in an individual discharge may be issued within an ONRW only if there is mitigation or offsets elsewhere in the ONRW segment that result in no net increase in any substance which might impact or impair the ONRW values for which the body of water was nominated.

(2) A water quality certification may permit an impact only if:

(a) The water quality necessary to maintain and protect the exceptional biological resource is maintained; and

(b) There is mitigation or restoration elsewhere in the ONRW water segment.

(3) Sources of pollution may be allowed by the Department for temporary degradation if, after a minimal period of time (weeks to months), the waters are returned or restored to conditions equal to or better than those existing just before the temporary source of pollution.

(4) After a public informational hearing, the Secretary may make exceptions to §I(1), (2), and (3) of this regulation to protect critical public health and safety concerns. ​